Sunday, 05 July 2015 17:23
On June 15, 2015, the Colorado Supreme Court ruled that an employer did not violate Colorado law by terminating an employee for testing positive for marijuana, which the employee used for medicinal purposes. Brandon Coats sued his former employer, Dish Network, LLC (“Dish”), for terminating him when he tested positive for the use of marijuana. Mr. Coats, who had a license issued pursuant to Colorado law for the use of medical marijuana, sued Dish alleging that it violated Colorado’s “lawful activities statute,” which prohibits an employer from terminating an employee for engaging in “lawful” activities outside of work. The Colorado Supreme Court found that because the use of marijuana is prohibited by federal law, the use of medical marijuana is not a “lawful” activity for purposes of the “lawful activities statute.”
While the Colorado Supreme Court’s decision is a positive one for employers, it is specific to Colorado law, and is not binding in Florida. Florida does not have a comparable “lawful activities statute.” However, because of Charlotte’s Web and continuing efforts to legalize additional strains of marijuana for medical use in Florida, we will continue to monitor decisions regarding the issue as they may provide guidance to Florida employers in the future.
Sarah P. Reiner | Sarah is a shareholder in the firm's employment and labor law department. Her practice centers on the representation of private and public employers and management in employment related actions at the agency, state and federal levels.
Craig F. Novick | Craig is an associate attorney with the firm's Orlando office, where he is a member of the Employment Law Group. He represents employers in all areas of employment law, including, but not limited to: discrimination; retaliation; the Fair Labor Standards Act; the Family and Medical Leave Act; and the Americans With Disabilities Act.
Sunday, 05 July 2015 17:13
In a globally connected world, business travel is essential. But it comes with the chance that your people will face risks. These range from natural disasters to civil unrest and war. Mistakes can cost your company, big time, but experts say you can manage those risks and deliver on your Duty of Care if you think ahead of time – in detail – about the landscape you’re entering.
Recently Troy Lockyer, managing director of Lockforce, talked with Australian Mining, an industry magazine and website,about the challenges of sending business travelers out into an uncertain world. Lockyer has 19 years of military experience, and has consulted to resource companies all over the world, including Asia, Europe, the Middle East, North America and South America.
Lockyer told the magazine’s Megan Edwardsthat the three biggest things he advises companies to be aware of before sending staff overseas to work are:
- Research or risk assessments
- Detailed security, safety and cultural sensitivity issues specific to the country where the travelers will be working
- A robust communication policy and procedure. He said it should be written, implemented, tested and exercised to promote a culture of travel safety and security.
And here’s the thing. You might think only certain people in an organization need to know the information developed that way, but Lockyer says it has to go well beyond a small group of travelers and managers. He says everyone within your organization should be briefed whether they travel or not. We immediately got an image of one person working in an office on a Saturday when a call comes in from a traveler halfway around the world, in a country where an earthquake, storm, or riot have suddenly changed all of the reference points. That home office employee would need this knowledge as a starting point.
Lockyer’s top piece of advice to Australian Mining is that an organization should establish a travel or journey management plan prior to any deployment, make sure everyone knows it, and stick to the plan if something happens. In a constantly changing world, that’s excellent counsel.
Messaging from Concur would be a valuable tool to add into the mix here. It can help an organization find its people in a crisis zone, and establish two way communication to get them help, or get them out.
A Basic Guide To Conducting a Threat Assessment For Your Small Business
How does the small business owner detect and prevent physical and cyber threats to the enterprise? Is it necessary, worthwhile or should anyone really care? With everything else for the shopkeeper to do, between ordering and inventorying merchandise, training employees and trying to increase sales, who has time? Won’t the police respond or protect the facility?
The bottom line is a business must be proactive and take definitive steps-tried and true measures-to reduce the likelihood of losses due to physical injury, theft, reputation damage and the insider threat. Your local police department is a great resource for handy and free publications on enhancing site safety and providing updated intelligence. However, the fact of the matter is an imminent threat to life and other violent or potentially violent crimes must take priority over hardening the security perimeter and environment of a private enterprise. You must take responsibility by identifying and mitigating-if not neutralizing-the most significant threats in your operating environment.
What does all this mean? Well, a comprehensive vulnerability study or analysis must address the elements of the micro threat environment primarily, while taking into consideration the larger, or macro issues, where possible. For example, your micro environment are those particular characteristics, conditions and hazards that are on your property, in your store or warehouse or that affect your employees as they travel from point A to B in furtherance of official business. Consider the physical condition of your structure, remembering to:
- remove debris from interior hallways, storage facilities and keep passageways and emergency exits clear; exterior walkways and appurtenances are also your responsibility in many cases to maintain;
- ensure that there are CCTV cameras-preferably digital and with a 90 day loop-to record events both within the structure and outside;
- conduct a positive ID check on all persons seeking to make deliveries or to engage in a sales presentation. A common scam is for a potential thief to pose as a vendor in to gain entry to sensitive areas of your business. Once inside, the offender scopes out security measures only to subsequently return to defeat them and perpetrate a robbery. Ensure that vehicles entering driveways and garage space are photographed and that the license plate is readable. Commercial license plate readers are available through security equipment vendors.
- keep as little cash as possible on premises. Make frequent, accompanied trips to the bank to make deposits and vary the timings of bank runs so as not to establish a detectable pattern;
spend the time and the money to conduct a background investigation on your new hires or potential employees. Most law enforcement agencies will provide you with public records if you can identify a report or incident number. Others may run a name check to locate a report if one exists (at times, the requestor must pay a fee for records reproduction and sensitive personal information may be redacted).
a great source of information that should not be overlooked is the employee’s social media profile. What info does he or she put out there for all to see? If the profile contains extreme writings on animal rights and the applicant is applying for a job at SeaWorld, you may be heading for trouble. Check Facebook, Twitter, My Space, Instagram, etc. The insider threat is a huge issue and refers to the threat to your enterprise that emanates from employees or contract employees. Although theft of merchandise or embezzlement of funds by employees without question hurts the bottom line, be mindful of the fact that if you make use of proprietary algorithms, formulas, designs or techniques, these items of intellectual property may also be at risk from disgruntled teammates and could end up in the hands of your competitors.
Don’t Forget The Big Picture:
Although the micro threats are those which require your immediate and continued, regular attention, the larger threat environment also can impact your operations, including employee safety. Engage with your local FBI office and police department. Time permitting, an agent or officer is happy to visit your establishment and brief your management and employees on major, macro issues affecting their area of responsibility, whether it be a city, county or state. These are big picture items and may touch on terrorism, intelligence trends, homeland security in general and city or state crime statistics. Check their websites as well for publicly available safety publications with valuable tips and attend a city counsel meeting when your local chief is scheduled to review the department’s performance and annual plan. It helps to educate yourself on these issues.
Although it may sound like a lot, you can take these measures in stages and delegate some of the responsibility to your trusted assistants or number two in charge. He or she can also offer you alternate points of view or draw on experience from previous jobs on what worked and what didn’t. There does not have to be a huge expenditure of funds, either.
Finally, Security Strategies Today offers a comprehensive threat and vulnerability assessment for the small business. We visit your premises, interview management, talk to employees, engage with the local police and assess your practices. Thereafter, we present you with our findings and offer a mitigation strategy, all for one low cost. Give us a call to find out more or to schedule an appointment.
The author is a former Assistant Special Agent in Charge with the Federal Bureau of Investigation and currently is employed as a security consultant.
Wednesday, 04 February 2015 14:38
How would you respond if a valued, long-time employee notified you that she has a new social security number (SSN) and/or an Employment Authorization Document (EAD) that includes different information about her than in your current records? This happens for hotel and restaurant employees more often than you may realize. Being ready to act quickly, and legally, can be important for you, the employee, labor relations (if in a collective bargaining situation) and your business.
The first question that many employers want to ask is, “Why did your number change?” The employee may voluntarily provide that information without you asking. But do you want or need to know, and can you believe whatever explanation is provided? The safer course of action is to proceed with a protocol that you can apply uniformly in all situations.
What could be the reason for assignment of a “new” social security number?
There are few situations in which the Social Security Administration (SSA) will change someone’s legitimate SSN, including witness protection, domestic violence issues, the correction of an SSA error in which it assigned the same number to multiple individuals, or because of identity theft. But otherwise, the most common reason to report a changed SSN to an employer is because the person has only recently become legally authorized to work and the number previously used was not legitimate.
President Obama’s Executive Actions in mid-2012 and again in late 2014 have made it possible for certain people who came to the U.S. without documentation as children, or for certain undocumented parents of U.S. citizens or Lawful Permanent Residents, to be issued time-limited EADs, which have allowed them to be issued legitimate SSNs. Those eligible for consideration under these programs, called Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), are the most likely to present themselves to you. (As we go to “press,” Congress is already taking aim at eliminating both DACA and DAPA. I will have more to say about the effects of the President’s 2014 Executive Action regarding employment-based immigration in a future blog entry.)
Long-term hotel and restaurant employees may appear to be more affected by DACA and DAPA than in many other industries. This may be because these individuals have had little opportunity or motive to move from job to job, even in the highly mobile service industry, because of concern that Form I-9 procedures could result in a new employer’s discovery of the lack of official documentation or employment authorization. For many affected by DACA and DAPA, job security has been more important than mobility.
Should I discipline the employee? Am I required to discipline the employee?
What if you become aware of the fact that the SSN you have previously associated with this employee was not that person’s legally assigned SSN? This would certainly be the case for a DACA or DAPA set of facts. This could be considered falsification of business records or a violation of a company’s “honesty in the business” policies.
As a business, you have a couple of choices, based your policy/ies, collective bargaining agreement (if the employee is represented by a union), and/or history of action in similar circumstances. You must be sure that, whatever you do, it does not result in disparate treatment involving any legally or contractually protected status. Make sure that proper protocols are followed for any investigation or action taken. If the employee is represented by a union, proper protocols should include reviewing the discipline-related articles of the collective bargaining agreement to ensure compliance, and providing representation for the employee if requested and required.
Assuming it is determined that the employee had purposely provided false information, taking disciplinary up to and including dismissal may be appropriate, considering other cases with that employer, the employer’s policy regarding honesty in the business, collective bargaining agreements, and status in any protected class.
Many employers confronted with DACA or DAPA cases are unwilling to dismiss a valued worker in this situation. Taking disciplinary action, or taking no disciplinary action, is not mandated by the government. However, you should be sure that whatever choice is made, it is not illegally discriminatory or in violation of a collective bargaining agreement.
How do I comply with Form I-9 Requirements?
The underlying basis of the presentation of a new SSN, or an EAD (which is likely to be accompanied by reference to a new SSN) may be of no real interest to you. Assuming you decide to continue her employment, your focus should be on what to do with the new information, which involves the Employment Eligibility Verification form; the Form I-9.
Assuming she was hired after November 6, 1986, when the Form I-9 came into existence, and the employer has a Form I-9 for her, you need to fully verify her employment authorization. This mayallow an opportunity to run this new information through E-Verify if you are registered.
The government has prepared a helpful resource document related to DACA cases, but which is also applicable to DAPA cases and cases in which you have been advised that a new SSN has been issued. You will see that the focus is clearly on the objective information presented, not the mystery behind it.
Your focus is on having a properly completed Form I-9 on file.
If the information presented presents a change to any of the information in Section 1 of the previously completed Form I-9, such as name, date of birth, attestation, or SSN (which is not always required in Section 1), she and you should complete a new Form I-9, using the original date of hire, and attaching it to the previously completed Form I-9. This applies in either situation, in which only an SSN change has been reported or an EAD has been presented. Of course, as a part of this process, you must examine and record information from the original document(s) presented to complete Section 2 and, if your policy is to always copy documents presented, to do so. Employers who participate in E-Verify should verify the new Form I-9 information through E-Verify.
If the information presented requires no change to any information in Section 1 of the previously completed Form I-9, such as if no SSN had been noted and no attestation change is required, you may complete Section 3 of the previously completed Form I-9 if the version used for the previous verification is still valid for use as of the current date. If Section 3 of the previously completed Form I-9 has already been completed, or if the previously completed Form I-9 is not currently valid for use, you should complete Section 3 of a new Form I-9, being sure to write the employee’s name at the top of Section 2. Attach any newly completed Form I-9 to the previously completed Form I-9. This situation does not require or authorize a new E-Verify check.
In all cases, be sure to examine the original documentation. You must certify that you have done so, and that the documentation appears to be genuine and relates to the employee presenting it.
The employee may choose which documents to present, either List A, or List B and List C. In only very limited circumstances may you legally suggest to the employee what documentation to present for Form I-9 purposes. Rather, provide the employee with the List of Acceptable Documents included with the Form I-9 and let the employee choose what to present to you. An employee who has a “new” SSN may choose to present an EAD as a List A document and is not necessarily required to present an SSN card as a List C document.
• In all cases, be sure to record the document title, document number, and its expiration date (if any).
• In all cases, be sure to sign and date the Form I-9 in the appropriate space.
• Remember to reverify the employee’s documentation by the date the validity period of a List A document expires, except for passports or Lawful Permanent Resident cards.
• Never reverify List B documents.
I also suggest that you consider preparing a memo to the file, also to be clipped to the Form I-9, explaining what happened and when, signing and dating that. This will allow an auditor to consider this, potentially years from now when none of the parties may be available to explain it, to understand exactly why this action took place.
Forms I-9 and related attachments must be retained for at least three years after the date of hire or one year after the date the individual’s employment is terminated, whichever is later.
What to do?
It is important to recognize that an employee’s presentation of the kind of information referenced here is a very serious matter in that employee’s life. Emotions can be high for that employee, co-workers, representatives, and yes, even you. Like anything you do in your job, planning for your response to a situation like this, and responding in a manner that can be seen as fair and reasonable can go a long way toward maintaining good employee relations and legal compliance.